U.S. Chamber of Commerce and others join Entergy in lawsuit against Vt.

September 10, 2012
By JOSH STILTS / Reformer Staff
BRATTLEBORO -- Four more groups filed briefs in support of Entergy in its case against the state of Vermont on Friday. The amicus curiae, or friends of the court filings submitted to the U.S. Second Circuit Court of Appeals, stated a federal judge's ruling that the Legislature passed Acts 74, 160 and 189 with the intent to regulate nuclear safety, should stand.
The groups, which included nuclear scientists, members of the Nuclear Energy Institute, the Washington Legal Foundation and the U.S. Chamber of Commerce, all agreed that the license extension granted to Vermont Yankee by the Nuclear Regulatory Commission should be upheld and the plant should be allowed to continue to operate.
In 2005, the Vermont passed Act 74, which requires approval from the public prior to the storage of all spent nuclear fuel in the state generated after March 21, 2012.
A year later Act 160 passed, which gave the state Legislature the ability to approve whether the Vermont's Public Service Board could issue a new Certificate of Public Good to any nuclear energy generating plants.
On March 20, 2011, the Nuclear Regulatory Commission granted a 20-year license extension for the Vermont Yankee nuclear power plant after a five-year review.
Roughly a month later Entergy, which owns and operates the nuclear reactor, filed suit against Vermont stating Acts 74 and 160 were preempted by the Atomic Energy Act. The company claimed that those laws were passed as a way to regulate radiological safety, which is the sole jurisdiction of the NRC.
In September of 2011, a three-day trial was held in federal court in Brattleboro with judge J Garvan Murtha. Both sides argued about whether the state lawmakers were indeed trying to regulate the safety of the nuclear power plant.
Murtha ruled in January that a portion of Act 74 and all of Act 160 were preempted by the AEA, but stated that Entergy still must adhere to Vermont regulations which require a new or renewed Certificate of Public Good.
His decision has been appealed by Vermont to the Second District Court of Appeals and at least seven other states have filed in support of Vermont.
Attorneys for the U.S. Chamber of Commerce wrote in their brief that if Murtha's decision were overturned, it could negatively affect millions of American business owners because it would give undue power to state officials.
According to their brief, a ruling in favor of Vermont would grant all state lawmakers the ability to bypass federal jurisdiction. It would render the Supremacy Clause "feeble constitutional protection" if a state or local legislature could avoid it by using "magic words" or alternatives for their true intent.
"It would offer every statehouse in America a simple, one-step blueprint for talking it way out of the preemptive effect of federal law and otherwise immunizing laws from constitutional scrutiny," the document states.
They argue that just because Act 160, by its terms, doesn't regulate radiological safety, doesn't mean there isn't need for further inquiry into the rest of the record.
While the state openly identified "public health issues" during recorded discussions about Act 160, the U.S. Chamber of Commerce and many other groups, say it's just a "proxy for safety."
During the trial, evidence showed the Legislature "engaged in a concerted effort to sanitize the text of the enacted laws and to mask their actual purpose with the clear design of skirting federal preemption," the document states.
The group of scientists includes the first chairman of the Nuclear Regulatory Commission, four Nobel Laureates professors of math, physics and science, as well as the chairman of the Northeast Section of the American Nuclear Society, the chairman of nuclear science, engineering and mechanical engineering at M.I.T.
In their filing, written by Martin S. Kaufman of Atlantic Legal Foundation in Larchmont, N.Y., they claim that the five nuclear energy plants in New England are the "backbone" of the region's electricity grid, accounting for 28.4 percent of the area's fuel type generation.
According to the scientists, a ruling in favor of Vermont would "result in uniformed and even irrational decisions by persons or agencies with inadequate expertise ... (and) the strangulation of a source of clean energy based on an abundant supply of consumable materials."
They also accused the Vermont Legislature of succumbing to the political temptation of "NIMBY" or "Not In My Back Yard" that often surrounds nuclear facilities.
When Vermont agreed to purchase power from Seabrook Station in New Hampshire instead of working with Entergy on a new deal to buy power from VY they gave in to "NIMBY," the document states.
NEI, a non-profit organization which established and advocates policies related to the commercial nuclear energy industry, stated in its brief that a win for Vermont would deter nuclear agencies from working in the United States.
If the preemption of Acts 74 and 160 is overturned it "could encourage other states to adopt similar legislation, impermissibly prohibiting operation of NRC-licensed nuclear facilities based on safety concerns," the document states.
Later in the filing, when addressing claims that Vermont Legislators were always talking about "safety" even if they were using ulterior words, the intent was still the same.
During the three-day trial, numerous hours of recorded discussions between lawmakers were played and analyzed, but the part that groups backing Entergy constantly point to is when one Legislator suggests the group "find another word for safety."
Their claim is that the admission of needing to find a different word for something supposed to be only under the NRC, and therefore preempted, is proof of the lawmakers true intent.
"While other considerations --for example, economic concerns-- were mentioned from time-to-time, none of these garnered anywhere close to the attention paid to safety," the document states. "In fact, there is reason to conclude that these other considerations played no role whatsoever in the decision to deny Vermont Yankee's certificate of public good, and were raised merely to avoid overt reliance on impermissible safety concerns."
NEI does concede that Vermont should have the ability to prevent the plant's continued operation for economic reasons but according to the organization, the state has no such claim because the nuclear reactor in Vernon isn't a public utility.
The Washington Legal Foundation, another non-profit corporation whose goal is to defend and promote economic liberty, free enterprise and a limited and accountable government, likewise filed in support of Entergy.
In the filing, lawyers for WLF focused primarily on a "scheme" by Vermont to prevent the nuclear reactor's continued operation because Entergy wouldn't agree to sell power to the state at below-market rates.
According to WLF, Vermont conspired to strong-arm Vermont Yankee into selling electricity to Green Mountain consumers at below-market rates, which violates the Federal Power Act.
Judge Murtha declined to issue a declaratory judgment in his January ruling about any violation of the FPA because any claim is premature since Vermont Yankee never entered into a below-market power purchase agreement with state utilities.
WLF claims the state refused to renew Vermont Yankee's CPG because "Entergy failed to enter into favorable below-market (power purchase agreement) with Vermont retail utilities."
"By requiring Vermont Yankee to provide in-state electric utilities more favorable rates than those provided to out-of-state electric utilities, Vermont's scheme blatantly attempts to give local consumers an advantage over consumers in other states," they wrote. "Such a scheme is per se invalid because it discriminates against interstate commerce on its face."
Later in the filing WLF states that if Vermont secured below-market rates for its own residents, it forces neighboring states to subsidize Vermont's power consumption.